The NLRB recently reversed 37 years of precedent in deciding to adopt a new standard for a union’s access to witness statements taken in pre-grievance arbitration employer investigations. For years, under the blanket exemption on mandatory disclosure for witness statements, employers have been able to assure employee witnesses to co-worker misconduct that their statements will be held confidential. With this new standard in place, employers can no longer offer such assurances, and many predict a resulting “chilling effect” on employees’ willingness to “see something, say something.” 

In American Baptist Homes of the West d/b/a Piedmont Gardens and SEIU, United Healthcare Workers-West, a split 3-2 decision, the majority of the Board held that, on a going forward basis, a “balancing test” will be applied to determine whether a union should be granted access to witness statements. Under this fact-intensive balancing test, the Board will weigh the Union’s need for the information against any “legitimate and substantial confidentiality interest established by the employer.”

Unions will, of course, assert that witness statements are necessary to determine whether to take an employee grievance to arbitration and to properly carry out the unions’ duties as the employees’ representative.

Not so easy for the employers. The Board specifies that “generalized” concerns about protecting the integrity of investigations are not sufficient to outweigh union interest in witness statements. Rather, employers must “determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.” This may be easier said than done.

Employers are left wondering how exactly they are to maintain a safe workplace free of illegal activity if their primary means of sussing out bad workplace conduct (i.e., employee witnesses) are not willing to speak for fear of reprisal.

Employers have two options. Option 1: They can continue to seek witness statements and “backfill” the witness statements to support a finding that the employer’s confidentiality interests outweigh the Union’s interests in obtaining the statements. Option 2: They can forego witness statements altogether in their investigations.

Option 1

Even though employers can no longer guarantee confidentiality to encourage employee participation in workplace investigations, they can explain to potential witnesses that confidentiality is more likely if the employee certifies that he or she fears the repercussions of his or her statement being shared with co-workers. Such certification can be included in the witness statements themselves or in a separate certification. This is not certain to win the day, but creating a paper trail of the employer’s “confidentiality interest” may prove useful if a dispute arises over access to witness statements.

In addition, employers wishing to contest the Union’s access to witness statements should seek a specific written explanation for why the Union needs the information (beyond the rote “we need it to see if there are any merits to the grievant’s claim”). Undoubtedly, unions and employers are about to spend a lot more time arguing over witness statements, so creating a good record of the relevant facts is critical.

Option 2

Witness statements are not the be all, end all in workplace investigations. In fact, an employer’s legal counsel may be retained to conduct investigatory interviews and record his or her notes and thoughts on the interview responses in what might be characterized as attorney work product. As with Option 1 above, there is no guarantee that an attorney’s interview notes will not be subject to disclosure, but there is certainly an argument to be made that such notes should be entitled to some protection. At the very least, this approach removes the employer from the “balancing test” applied to witness statements, which will undoubtedly favor disclosure is most cases.